Taft v. Maryland Casualty Co.

Claeksokt, J. At the close of plaintiff’s evidence, the defendant in the court below made a motion for judgment as in case of nonsuit. C. S., 567. The court below sustained the motion, and in this we can see no error. The language in the policy to be construed is: “While driving or riding in a passenger automobile.” The language is clear and not ambiguous. The vehicle in which plaintiff’s intestate was riding when killed was a 1934 Ford Y-8 truck. It had a trailer about 20 feet long, four wheels in the rear. It was being driven with the trailer the night on which plaintiff’s intestate was killed. There is a vast difference between a truck and a passenger automobile. The difference is recognized in this State by statute. As to a truck, O. S., 2621 (46a), is as follows: “No motor vehicle designed, equipped for, or engaged in transporting property shall be operated over the highways of the State at a greater rate of speed than thirty-five miles an hour, and no such motor vehicle to which a trailer is attached shall be operated over such highways at a greater rate of speed than thirty (30) miles an hour.” As *511 to passenger vehicle, 0. S., 2621 (46), says: “Speed restrictions — (a) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing, (b) 'Where no special hazard exists the following speeds shall be lawful, but any speed in excess of said limits shall be prima facie evidence that the speed is not reasonable or prudent, and that it is unlawful. (4) Forty-five miles per hour under other conditions,” etc. The cost of license is different for a passenger automobile and a truck. 0. S., 2612, “Rates for automobiles” are set forth, and “Rates for trucks,” and “on all trailers $15.00 per ton carrying capacity.” Plaintiff admin-istratrix testified: “My husband bought a truck license for it and had said license on it the night he was killed.” In Lloyd v. Ins. Co., 200 N. C., 722, the statement of the case, in part, is as follows: “The policy provided an indemnity of $1,000 for death from accidental bodily injuries if such death resulted from The wrecking or disablement of any private horse-drawn vehicle, or private automobile of the pleasure-ear type in which the insured is riding or driving/ etc. The evidence tended to show that at the time of his death the deceased was riding in a 1929 Model A, one and a half ton Ford truck. This truck has an enclosed cab with a seat that would accommodate three passengers comfortably. The owner of the truck testified that it was used for hauling passengers and truck. He said: 'There was no place at the back for passengers to ride. That was to carry what we wanted to haul. We had a body on the back. Sometimes I took my family to church on it. . ... We had a car other than this truck. . . . On the back is a truck body which was used for hauling milk from the Lawrence Dairy on the milk route. It was used for most anything that come to hand and done more hauling of milk than anything else. I also had a five-passenger Ford touring car. That was the principal pleasure car of the family. . . . There was a wreck.’ Two other men were riding in the truck with the deceased at the time of the wreck. The third issue was as follows: 'Was plaintiff’s intestate killed by the wrecking and disablement of a private automobile of the pleasure-car type in which insured was riding, as alleged in the complaint V At the close of plaintiff’s testimony the trial judge intimated that he would give a peremptory instruction directing the jury to answer the third issue ‘No.’ ” The question in this case was: “Is a Ford one and a half ton truck, used principally for hauling milk, 'a private automobile of the pleasure-car type ?’ ” The court concludes its opinion: “Manifestly, the truck in which plaintiff’s intestate was riding at the time of his death was by intention, use, and construction a commercial vehicle, and so classified by the North Carolina statute. Consequently, the coverage clause of the policy issued by the defendant did not, upon the evidence, include the *512 accidental death of plaintiff’s intestate, and the ruling of the trial judge is upheld.” We are of the opinion that this caáe is determinative of the present one. The plaintiff relies on Conyard v. Ins. Co., 204 N. C., 506, and Fidelity & Casualty Co. v. Martin, 66 Federal Reporter (2nd series), 438 (9th circuit). In the Conyard case, supra, the deceased “Held an insurance policy with the defendant company which provided an indemnity of $1,000 for death from accidental bodily injuries resulting from the 'collision of or by any accident to any private drawn vehicle or private motor driven car in which the insured is riding or driving.’ ” It was held: “The term 'motor driven car’ is broad enough to include a motor driven truck, and we cannot say a narrower interpretation was intended by the parties. The rule of construction is, that when an insurance policy is reasonably susceptible of two interpretations, the one more favorable to the assured will be adopted. 'The policy having been prepared by the insurers, it should be construed most strongly against them’ (citing authorities). There is nothing said in Lloyd v. Ins. Co., 200 N. C., 722; Anderson v. Ins. Co., 197 N. C., 72; or Gant v. Ins. Co., 197 N. C., 122, which militates against the position here taken.” In the Martin case, supra, the factual situation was different. “Roy Anderson, a Ford salesman, testified that the car purchased by Mr. Martin was a Ford roadster, a pick-up body, and not a truck.” The Court in that case said (at pp. 440-1) : “If the car had been a Ford roadster equipped to carry passengers only; or a heavy truclc solely adapted to carry freight, and the necessary attendants and operators, no doubt the question of the applicability of the policy of insurance to accidents occurring therein would be a question of law, but, where the automobile is of the character disclosed by the evidence, its classification is one of fact to be determined by the court or jury, as the case may be.” (Italics ours.) Neither of the above cases is similar to the present one. The language of the policy here is: “While driving or riding in a passenger automobile.” The plaintiff’s intestate was riding when killed (1) in a 1934 Ford V-8 truck; (2) it carried a truck license with a trailer (the trailer was an additional license cost), and when plaintiff’s intestate was killed it was a truck with the trailer attached; (3) there is no part of the vehicle which is the same as an ordinary passenger car; (4) the wheels (double in the back), the springs, the chassis, and everything is different, and it was designed and built for the sole purpose of hauling— it was a truck; (5) the State license fee was for truck hauling and different from the State license fee for a passenger automobile; (6) the truck was bought primarily to be used in business; (7) under the rule *513 of tbe road it was prohibited from being driven as fast as a passenger automobile; (8) tbe cheapness of the policy ($1.20 per year premium with payment for loss óf life $1,000) covered injury while driving or riding in a passenger automobile — not a truck. This would indicate clearly that it was not a passenger automobile in which many might ride compared with a few in a truck. The duty of a court is to construe and not malee contracts — that is for the parties to do.. Gilmore v. Ins. Co., 199 N. C., 632. The fact that the truck in question was used for passenger purposes cannot change the nature of the vehicle or the terms of the contract. The intention of the parties is shown by the clear and unmistakable language used, no ambiguity. It is the duty of a court in such cases to construe the contract. The fact that the truck was used for pleasure trips does not make it a passenger automobile so as to nullify the plain language of the contract. The death of plaintiff’s intestate was a sad misfortune, which in no way defendant was responsible or liable for under the policy sued on. For the reasons given, the judgment of the court below is Affirmed.